Lerman v. Unknown

Filing 18

ORDER Denying Request for Evidentiary Hearing and REPORT AND RECOMMENDATION Re Denial of Third Amended Petition for Writ of Habeas Corpus. It is hereby recommended that the Court issue an Order: (1) approving and adopting this Report and Recommendati on, and (2) directing that Judgment be entered denying the Petition. Objections to R&R due by 4/30/2019. Replies due by 5/17/2019. Signed by Magistrate Judge Ruben B. Brooks on 3/28/2019. (All non-registered users served via U.S. Mail Service) (jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID LERMA,

Case No.: 17cv1925 LAB (RBB)
Petitioner,

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(1) ORDER DENYING REQUEST
FOR EVIDENTIARY HEARING
AND

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v.

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(2) REPORT AND
RECOMMENDATION RE DENIAL
OF THIRD AMENDED PETITION
FOR WRIT OF HABEAS CORPUS

RALPH DIAZ, Secretary,

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Respondent.

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I.

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INTRODUCTION
Petitioner David Lerma (“Petitioner” or “Lerma”), a state prisoner proceeding pro

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se, has a Third Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

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§ 2254 pending before this Court. There, he challenges his San Diego Superior Court

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conviction in case number SCN315179. (Third Am. Pet. 1, ECF No. 8.) Lerma also

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requests an evidentiary hearing. (Id. at 11.) The Court has reviewed the Third Amended

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Petition, the Answer and Memorandum of Points and Authorities in Support of the

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Answer, the lodgments, and all the supporting documents submitted by both parties. For

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the reasons discussed below, the Court DENIES Petitioner’s request for an evidentiary

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hearing and RECOMMENDS that the Petition be DENIED.

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II.

FACTUAL BACKGROUND

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A.

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A.R., the victim in this case, was born in August 1998. (Not. Lodgment Attach. #4

Prosecution Case

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Rep.’s Tr. vol. 2, 179, Jan. 8, 2014, ECF No. 13.) At the time of trial, A.R. was 15 years

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old. (Id. at 114.) A.R.’s mother, Aisha, met David Lerma in 2004 and married in 2005.

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(Id. at 68, 71.) At the time, Aisha was in a relationship with a man named Marco.

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Shortly after meeting Lerma, Aisha ended her relationship with Marco and began dating

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Lerma. (Id. at 67-68, 118-19.)

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A few months later, Lerma moved into Aisha’s one bedroom mobile home. (Id. at

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69, 119-20.) Although A.R. had her own bed, the three all slept in the bedroom. (Id. at

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69-70.) Lerma and Aisha married in April 2005. (Id. at 70-71.) Over time, Lerma and

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A.R. developed a father-daughter relationship, and A.R. began calling Lerma “Dad.” (Id.

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at 65-72, 76-77, 179, 183, 221-23.)

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1.

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A.R.’s Trial Testimony About the Abuse

At trial, A.R. testified that when she was about eight, she was asleep in her bed and

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woke up to find Lerma’s hand on her vagina over her clothes. (Id. at 130-32.) After she

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woke up, Lerma removed his hand. (Id. at 131-32.) He then walked out of the bedroom

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without saying anything. (Id. at 133.) A.R. went back to sleep. (Id.)

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On another occasion when A.R. was eight or nine, and the family was still living in

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the one bedroom mobile home, A.R. was getting ready to take a shower. (Id. at 125,

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128.) She was in the bedroom naked. (Id. at 125-26.) Lerma came into the bedroom, led

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her to the bed, and put a pillow over her face. (Id. at 126.) He touched her vagina with

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his fingers and then licked her vagina with his tongue. (Id. at 127.) Lerma did not say

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anything; when he was done, A.R. took a shower. (Id. at 127, 129.)

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When A.R. was about ten years old, she, her mother, and Lerma moved to a two

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bedroom mobile home; there, A.R. had her own bedroom. (Id. at 71.) One evening,

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after they had moved, A.R. was not wearing any clothes and about to step into the shower

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when Lerma came into her bedroom, which was connected to the bathroom. (Id. at 136,

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143.) He pulled A.R. out of the bathroom, laid her on the bed, and put a pillow over her

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face. He rubbed her vagina with his fingers and then licked her vagina. (Id. at 136-40.)

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He asked her if she liked his finger or his tongue better. (Id. at 139.) She did not answer.

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(Id. at 140.) He stopped when the telephone rang; A.R. then got up and took a shower.

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(Id. at 140-42.)

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A few months after the third incident, Aisha and Lerma separated, and Lerma

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moved out of the mobile home. (Id. at 78-79, 144.) A.R. was ten years old and in the

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fifth grade when Lerma moved out. (Id. at 150.) A.R. and Lerma stayed in contact after

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Aisha and Lerma divorced. The two communicated over the phone and through text

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messages. (Id. at 151.) A.R. visited Lerma on several occasions. (Id. at 151-52.)

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When A.R. was eleven or twelve years old, she went to visit Lerma at the

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townhouse he was sharing with his then girlfriend, Jennifer, and Jennifer’s five-year-old

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son, Marco. (Id. at 152-53, 155, 161.) It was A.R.’s first visit with Lerma after he and

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her mother divorced; while A.R. was there, Jennifer left to go somewhere. (Id. at 153.)

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A.R. and Lerma were sitting on the bed in the master bedroom while Lerma played video

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games and A.R. watched. (Id. at 155.) At one point, Lerma unbuckled his pants, put a

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blanket over himself, grabbed A.R.’s hand, and made her touch his penis. (Id. at 154-55,

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157.) She did not see Lerma’s penis but she felt it outside the opening of his boxer

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shorts. (Id. at 157.) He held his hand over hers and made it go up and down his penis; he

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ejaculated and let go of her hand. (Id. at 158-60.) He zipped up his pants, and A.R.

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washed her hands in the bathroom. (Id.) Lerma did not say anything during the incident.

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(Id. at 160-61.) He later drove A.R. back to her grandmother’s home. (Id. at 162-63.)

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A.R. testified that on Father’s Day, she visited Lerma again; she was twelve years
old. At that time, Lerma and Jennifer were living in a second townhome in Vista,
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California. (Id. at 163-64, 167.) A.R. and Lerma were sitting on his bed, and Lerma

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pushed her so that she was lying down on the bed. (Id. at 166.) He pulled A.R.’s pants

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and underwear down to her ankles, touched her vagina with his fingers, and rubbed her

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chest over her shirt; Lerma stopped and A.R. put her pants back on. (Id. at 166-68.)

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Lerma then got off the bed and stood in front of her. (Id. at 168.) He dropped his pants

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to his ankles, and his penis was outside the hole of his boxer shorts. This was the first

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time A.R. saw his penis; Lerma put her hand on it and she “play[ed]” with it until he

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ejaculated. (Id. at 169-70.) He did not say anything; afterward, A.R. washed her hands

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in the bathroom. (Id. at 170.) Lerma later drove A.R. back to her grandmother’s house.

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(Id. at 171.)

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A.R. testified that during the summer of 2010, when she was twelve years old, she,

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Lerma, Jennifer, and Jennifer’s son all went to Legoland.1 (Id. at 172.) At trial, she

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stated that, after Legoland, Lerma took her home to her grandmother’s house. (Id. at

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173.)

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On another occasion during the summer of 2010, A.R. again went to the

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townhouse Lerma and Jennifer shared; Jennifer and Lerma were both there. (Id. at 174-

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75.) They all went to the pool together. (Id. at 174.) Later, A.R. and Lerma were in his

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bedroom watching television; Jennifer was in the living room. (Id.) Lerma took off

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A.R.’s pants and touched her vagina with his fingers. (Id. at 176.) Lerma was lying on

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the bed; he had taken his pants off and was covering himself with a blanket. (Id. at 176-

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77.) He took A.R.’s hand and moved her hand up and down on his penis until he

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ejaculated. (Id. at 177.) Lerma put his pants back on; A.R. stayed for dinner; and Lerma

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drove her home after. (Id. at 178.)

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In statements A.R. made prior to trial, she had described an incident occurring on the same day as the
Legoland visit. (Not. Lodgment Attach #4 Rep.’s Tr. vol. 2, at 240-41, ECF No. 13.) A.R. was not able
to recall that incident at trial. (Id. at 242.) Some of her previous statements about that day were also
entered into evidence and are discussed in Section V(A) of this Report and Recommendation. (Id. at
240-42; see also Not. Lodgment Attach. #5 Rep.’s Tr. vol. 3, 274, Jan. 9, 2014, ECF No. 13.)
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The last time A.R. visited Lerma was in April 2012, when she was thirteen. (Id. at

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179.) A.R. went to have dinner with Lerma, Jennifer, and Jennifer’s son, and to meet

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Lerma and Jennifer’s new baby girl. (Id.) Jennifer was in the bedroom with the baby,

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and A.R. was seated at the dining room table. (Id. at 181-82.) Lerma tried to touch

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A.R.’s vagina over her pants. (Id.) She pushed his hand away. (Id. at 182.) Later, in the

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living room, Lerma pushed A.R. onto the couch and started “humping [her] butt.” (Id. at

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180, 183.) She pushed him off. (Id. at 183.) Later, everyone ate dinner together and

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watched television in the living room. (Id. at 183.) Lerma told A.R. to get a video game

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from the bedroom; he followed her there and tried to get on top of her. (Id. at 184.) She

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pushed him off and said “no.” (Id.) Lerma got up and they both went back to the living

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room and played video games; shortly thereafter, he drove A.R. home. (Id. at 184.)

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2.

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A.R. Reports Abuse

A.R. had been attending counseling sessions on and off since she was about four

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years old to help her with issues arising from her parents’ divorce. (Id. at 92-93, 189,

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192.) During one session, when A.R. was eight or nine years old, she told her counselor

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about an incident when she woke up to find her mother’s former boyfriend, Marco,

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touching her inappropriately.2 (Id. at 92, 188-89, 192.) The counselor notified A.R.’s

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mother and the police. (Id. at 94-95, 191-92.) Police informed Aisha that Marco was no

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longer in the country, having been previously deported, and there was no further

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investigation. (Id. at 95.)

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At trial, A.R. testified that she later realized that it was not Marco who had touched

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her inappropriately, but Lerma. (Id. at 190-91.) A.R. stated that when her mother was

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dating Marco, A.R. had slept in a toddler bed. (Id.) When Lerma moved in with A.R.

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and her mother, he purchased a twin sized bed for A.R. (Id. at 190, 199, 210-11.) A.R.

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testified that when she was ten or eleven, she deduced that it was Lerma, and not Marco,

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Aisha testified that A.R. had not seen Marco since A.R. was four years old. (Not. Lodgment Attach.
#4 Rep.’s Tr. vol. 2, at 93-94, ECF No. 13.)
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who had touched her. (Id. at 194.) When she saw a photograph of herself in the twin-

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sized bed Lerma had bought her, she realized that it was Lerma who had

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touched her while she was sleeping. (Id. at 194, 196.) A.R. did not tell her mother that

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she had mistakenly blamed Marco for touching her inappropriately because she was

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worried Aisha would overreact; by then they had already been living with Lerma. (Id. at

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194-95.)

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In May 2012, about a month after her last visit with Lerma, A.R. told her mother

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that Lerma had been touching her inappropriately. (Id. at 83-85, 197-98, 230-31.) A.R.

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also told Aisha that it was Lerma, not Marco, who had touched her inappropriately while

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she was sleeping. (Id. at 196-97.) Aisha contacted the police. (Id. at 85.)

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In June 2012, a licensed social worker, Laurie Fortin, conducted a forensic

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interview with A.R. (Id. at 248-49.) During the interview, A.R. stated that when she was

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three or four, Marco would “do stuff to me like touch me . . . when I was little.” (Not.

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Lodgment Attach. #2 Clerk’s Tr. vol. 2, at 271, 280, ECF No. 13; see also Not. Suppl.

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Lodgment Attach. #1 [Clerk’s transcript excerpts], at 1, ECF No. 15.3)

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A.R. also recounted Lerma’s conduct over the years, including instances when he

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covered her face with a pillow and touched her inappropriately. (Not. Lodgment Attach.

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#2 Clerk’s Tr. vol. 2, at 280, 287-88, ECF No. 13; see also Not. Suppl. Lodgment Attach.

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#1 [Clerk’s transcript excerpts], at 4, ECF No. 15.) She reported an incident when she

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was about to get in the shower and Lerma pulled her onto the bed and touched her vagina

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with his fingers and licked her vagina. (Not. Lodgment Attach. #2 Clerk’s Tr. vol. 2, at

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290-92, ECF No. 13; see also Not. Suppl. Lodgment Attach. #1 [Clerk’s transcript

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excerpts], at 6-8, ECF No. 15.) Lerma asked A.R. if she liked it, and she said “no;” he

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continued touching her until the phone rang. (Not. Lodgment Attach. #2 Clerk’s Tr. vol.

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In the copy of volume one of the clerk’s transcript lodged with this court, several pages of testimony
relating to the forensic interview were missing or illegible. Respondent submitted those pages as a
supplemental lodgment [ECF No. 15]. The page numbers for the supplemental lodgment refer to those
imprinted by the court’s electronic case filing system and correspond to the Bates stamp page numbers
of the missing or illegible pages referenced from the clerk’s transcript.
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2, at 290, ECF No. 13; see also Not. Suppl. Lodgment Attach. #1 [Clerk’s transcript

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excerpts], at 6, ECF No. 15.)

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A.R. told Fortin that after her mother and Lerma divorced, the abuse continued on

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occasions when she visited Lerma: He would lower her pants to her ankles, pull her onto

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the bed, and touch her vagina. (Not. Lodgment Attach. #2 Clerk’s Tr. vol. 2, at 287, 292-

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93, ECF No. 13; see also Not. Suppl. Lodgment Attach. #1 [Clerk’s transcript excerpts],

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at 8-9, ECF No. 15.) Lerma would then unbuckle his pants and, while covering himself

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with a blanket, grab her hand and make her touch his penis. (Not. Lodgment Attach. #2

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Clerk’s Tr. vol. 2, at 292-93, ECF No. 13; see also Not. Suppl. Lodgment Attach. #1

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[Clerk’s transcript excerpts], at 4-5, 8-9, ECF No. 15.)
A.R. told Fortin that she saw Lerma’s penis one time when he “pushed her down

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and opened [her] legs” and tried to “put it inside [her].” (Not. Lodgment Attach. #2

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Clerk’s Tr. vol. 2, at 293-94, ECF No. 13; see also Not. Suppl. Lodgment Attach. #1

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[Clerk’s transcript excerpts], at 9-10, ECF No. 15.) She told him no and resisted; A.R.

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also stated that Lerma tried to put his fingers inside her which was painful, and he tried to

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put his penis inside her two or three times. (Not. Lodgment Attach. #2 Clerk’s Tr. vol. 2,

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at 294, ECF No. 13; see also Not. Suppl. Lodgment Attach. #1 [Clerk’s transcript

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excerpts], at 10, ECF No. 15.)

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3.

Interviews of Lerma

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On September 14, 2012, Detective Licudine interviewed Lerma at his home. (Not.

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Lodgment Attach #1 Clerk’s Tr. vol. 1, at 178-234, ECF No. 13; see also Not. Lodgment

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Attach #5 Rep.’s Tr. vol. 3, 284-86, 293, Jan. 9, 2014, ECF No. 13.) Lerma repeatedly

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denied touching A.R. inappropriately. (Not. Lodgment Attach. #1 Clerk’s Tr. vol. 1,

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197-98, 200, 202-04, 207-10, ECF No. 13.) Petitioner told Detective Licudine that he

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continued his relationship with A.R. after he ended his relationship with Aisha. (See id.

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at 185-86.) He stated that during her last visit, they ate dinner and played video games at

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his house. (Id. at 187-89.) He mentioned that on another occasion A.R. cried when she

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wanted a birthday present from him and he told her that he could not afford to take her
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shopping anymore because he needed the money to buy necessities for his new baby.

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(Id.)

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Detective Licudine told Lerma that A.R.’s allegations included that he put his

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mouth on her vagina multiple times, she gave him a “blowjob” on multiple occasions, he

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attempted to penetrate her vagina multiple times, and he touched her inappropriately on

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several occasions. (Id. at 197-200, 202-03.) Lerma denied it. (Id.) Detective Licudine

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suggested that Lerma’s DNA was in A.R.’s vagina and mouth.4 (Id. at 198-99.) He

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responded that his DNA should not be in A.R.’s vagina or in her mouth, “period.” (Id. at

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199.) Detective Licudine told Lerma that the only way to clear his name was to pass a

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polygraph test, and he agreed to take it. (Id. at 198-201.)

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On October 2, 2012, Lerma sat for a polygraph test at the San Diego Sheriff’s

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Department. (Not. Lodgment Attach. #5 Rep.’s Tr. vol. 3, at 298, ECF No. 13.) During

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the test, Lerma denied having any sexual contact with A.R. (Id. at 298-300; Not.

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Lodgment Attach. #1 Clerk’s Tr. vol. 1, at 254, 257-59, ECF No. 13.) He specifically

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denied each of the allegations made by A.R. (Not. Lodgment Attach. #1 Clerk’s Tr. vol.

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1, at 254, 257-59, ECF No. 13.)

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In a conversation with the polygraph examiner, Lerma admitted that he had A.R.

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masturbate him, he grabbed her butt underneath her clothes three to four times, he

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touched her breast over her clothes four times, he touched her vagina over her clothes one

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time, and he inserted his finger in her vagina once. (Not. Lodgment Attach. #1 Clerk’s

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Tr. vol. 1, at 261-62, 267; see also Not. Lodgment Attach. #6 Rep.’s Tr. vol. 4, 448-49,

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452-53, Jan. 13, 2014, ECF No. 13.) Lerma told the polygraph examiner that sexual

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contact took place only on the couch and not in the bedroom or shower. (Not. Lodgment

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Attach. #1 Clerk’s Tr. vol. 1, at 264-65, ECF No. 13.) The examiner asked Lerma why

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Law enforcement did not have any such DNA evidence. Detective Licudine testified that this is a
common law enforcement interrogation technique used to “try to obtain a confession from [Lerma] or an
explanation.” (Not. Lodgment Attach. #4 Rep.’s Tr. vol. 2, at 293-94, ECF No. 13.)
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he did not mention the sexual contact during the polygraph; he replied that he was afraid

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that he would go to jail and lose his family. (Id. at 267, 269.)

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B.

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Lerma’s defense at trial was that he did not commit any of the sexual acts

Defense Case

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described by A.R. and that he was being wrongfully accused. His fiancée, Jennifer,

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testified that when A.R. visited their home, she was never alone with Lerma. (Not.

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Lodgment Attach. #5 Rep.’s Tr. vol. 3, at 324, ECF No. 13.) Jennifer testified that she

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never heard Lerma say anything sexual to A.R. and never saw anything inappropriate

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between the two; she stated that A.R. was “clingy” with Lerma. (Id. at 324, 326.) A.R.

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never gave Jennifer the impression that she was being molested. (Id. at 326.)

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Lerma testified in his own defense. He stated that, other than spanking A.R.’s

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bottom in a playful manner over her clothes, he did not do anything sexually

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inappropriate to her. (Id. at 387-88; Not. Lodgment Attach. #6 Rep.’s Tr. vol. 4, at 464-

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65, ECF No. 13.) He told the polygraph examiner that he had acted inappropriately

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because the examiner would not accept his denials so he “gave in.” (Not. Lodgment

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Attach. #5 Rep.’s Tr. vol. 3, at 388, ECF No. 13.) Lerma was also afraid that Child

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Protective Services would take his baby into foster care. (Not. Lodgment Attach. #6

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Rep.’s Tr. vol. 4, 434-35, Jan. 13-17, 2014, ECF No. 13.) He believed A.R. accused him

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of abusing her because she thought he did not love her anymore after the arrival of his

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new baby and because he did not buy her gifts anymore. (Id. at 411-12, 419-21.)

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III.

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PROCEDURAL BACKGROUND
On May 21, 2013, the San Diego District Attorney’s Office filed an information

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charging Lerma with oral copulation/sexual penetration of A.R., a child ten years old or

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younger, between September 21, 2006 and August 13, 2009 (count one), in violation of

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California Penal Code section 288.7(b). (Not. Lodgment Attach. #1 Clerk’s Tr. vol. 1, at

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6-7, ECF No. 13.) It further alleged five additional counts of committing lewd acts upon

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A.R., then a child under fourteen years of age, between August 14, 2009 and August 13,

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2012 (counts two, three, four, six, and seven), in violation of California Penal Code
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section 288(a). (Id. at 7-9.) Additionally, the information alleged one count of

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committing a forcible lewd act on A.R. (count five), in violation of California Penal Code

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section 288(b)(1). (Id.) As to counts two through six, it was further alleged that Lerma

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had substantial sexual conduct with A.R. (Id. at 7-8.)

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Lerma’s jury trial began on January 6, 2014. (Not. Lodgment Attach. #2 Clerk’s

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Tr. vol. 2, at 350, ECF No. 13; see also Not. Lodgment Attach. #3 Rep.’s Tr. vol. 1, 49,

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Jan. 6 & 7, 2014, ECF No. 13.) On January 9, the court granted Lerma’s motion for

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judgment of acquittal as to counts five and six, under California Penal Code section

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1118.1. (Not. Lodgment Attach. #2 Clerk’s Tr. vol. 2, at 359, ECF No. 13; Not.

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Lodgment Attach. #5 Rep.’s Tr. vol. 3, at 313-14, ECF No. 13.) The jury began

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deliberations on the remaining counts on January 13 and deliberations continued for five

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more days. (See Not. Lodgment Attach. #2 Clerk’s Tr. vol. 2, at 363-72, ECF No. 13;

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see also Not. Lodgment Attach. #6 Rep.’s Tr. vol. 4, at 392, 554, 560-66, ECF No. 13.)

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On January 21, 2014, the jury found Lerma guilty on counts one, two, four, and seven

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and not guilty on count three. (See Not. Lodgment Attach. #1 Clerk’s Tr. vol. 1, at 110-

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14, ECF No. 13.) It further found that the substantial sexual conduct allegations in counts

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two and four were true. (Id.; see also Not. Lodgment Attach. #7 Rep.’s Tr. vol. 5, 568-

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70, ECF No. 13.) On February 21, 2014, the trial court sentenced Lerma to twenty-three

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years to life imprisonment.5 (Not. Lodgment Attach. #2 Clerk’s Tr. vol. 2, at 377, ECF

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No. 13; see also Not. Lodgment Attach. #7 Rep.’s Tr. vol. 5 at 580-85, Jan. 21 & Feb. 21,

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2014, ECF No. 13.)

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Lerma appealed his conviction to the California Court of Appeal. (See Not.

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Lodgment Attach. #8 Appellant’s Opening Brief, People v. Lerma, D068126 (Cal. Ct.

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App. [Apr. 14, 2016], ECF No. 13.) Lerma raised three claims on appeal: (1) the trial

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The court sentenced Lerma to a base term of fifteen years to life on count one, six years consecutive on
count two, two years consecutive on count four, and three years concurrent on count seven. (Not.
Lodgment Attach. #4 Rep.’s Tr. vol. 5, at 580-84, ECF No. 13; Not. Lodgment Attach. #2 Clerk’s Tr.
vol. 2, at 377, ECF No. 13.)
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court erred in admitting a portion of A.R.’s forensic interview; (2) trial counsel was

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ineffective in failing to adequately object to the admission of A.R.’s prior forensic

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statement; and (3) the trial court erred in failing to sua sponte instruct the jury on a lesser

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included offense. (See id. at 2-4.) On February 23, 2017, the appellate court affirmed

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Lerma’s conviction in a reasoned opinion. (Not. Lodgment Attach. #11 People v.

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Lerma, D068126, slip op. (Cal. Ct. App. Feb. 23, 2017), ECF No. 13, as modified by Not.

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Lodgment Attach. #12 People v. Lerma, D068126, Order Modifying Opinion and

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Denying Rehearing (Cal. Ct. App. Mar. 21, 2017), ECF No. 13.)

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Lerma then filed a petition for review in the California Supreme Court. (See Not.

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Lodgment Attach. #13 Petition for Review People v. Lerma, No. S241125 (Cal. [Apr. 6,

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2017], ECF No. 13.) In the petition, Lerma again argued that the trial court erred in

12

admitting A.R.’s prior forensic interview and in failing to sua sponte instruct the jury on a

13

lesser included offense. (See id. at 4, 27.) On June 14, 2017, the California Supreme

14

Court denied the petition for review without comment or citation. (Not. Lodgment

15

Attach. #14 People v. Lerma, No. S241125, Order at 1 (Cal. June 14, 2017), ECF No.

16

13.)

17

Lerma, proceeding pro se, filed his Third Amended Petition for Writ of Habeas

18

Corpus on May 10, 2018, and raises two claims [ECF No. 8]. On July 16, 2018,

19

Respondent filed an Answer, a Memorandum of Points and Authorities in Support

20

of the Answer and Lodgments of the state court records [ECF Nos. 11 & 12]. On

21

February 4, 2019, Respondent filed Supplemental Lodgments [ECF No. 15].

22

IV.

23

SCOPE OF REVIEW
Lerma’s Petition is governed by the provisions of the Antiterrorism and Effective

24

Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997).

25

Under AEDPA, a habeas petition will not be granted unless the adjudication (1) resulted

26

in a decision that was contrary to, or involved an unreasonable application of clearly

27

established federal law; or (2) resulted in a decision that was based on an unreasonable

28

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11
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1

determination of the facts in light of the evidence presented at the state court proceeding.

2

28 U.S.C.A. § 2254(d) (West 2006); Early v. Packer, 537 U.S. 3, 8 (2002).

3

A federal court is not called upon to decide whether it agrees with the state court’s

4

determination; rather, the court applies an extraordinarily deferential review, inquiring

5

only whether the state court’s decision was objectively unreasonable. See Yarborough v.

6

Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In

7

order to grant relief under § 2254(d)(2), a federal court “must be convinced that an

8

appellate panel, applying the normal standards of appellate review, could not reasonably

9

conclude that the finding is supported by the record.” See Taylor v. Maddox, 366 F.3d

10
11

992, 1001 (9th Cir. 2004).
A federal habeas court may grant relief under the “contrary to” clause if the state

12

court applied a rule different from the governing law set forth in Supreme Court cases or

13

decided a case differently than the Supreme Court on a set of materially indistinguishable

14

facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the

15

“unreasonable application” clause if the state court correctly identified the governing

16

legal principle from Supreme Court decisions but unreasonably applied those decisions to

17

the facts of a particular case. Id. Additionally, the “unreasonable application” clause

18

requires that the state court decision be more than incorrect or erroneous; to warrant

19

habeas relief, the state court’s application of clearly established federal law must be

20

“objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). “[A]

21

federal habeas court may not issue the writ simply because that court concludes in its

22

independent judgment that the relevant state-court decision applied clearly established

23

federal law erroneously or incorrectly. Rather, that application must also be

24

unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “A state court’s

25

determination that a claim lacks merit precludes federal habeas relief so long as

26

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”

27

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541

28

U.S. 652, 664 (2004)).
12
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1

Where there is no reasoned decision from the state’s highest court, the Court

2

“looks through” to the underlying appellate court decision and presumes it provides the

3

basis for the higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501

4

U.S. 797, 805-06 (1991). If the dispositive state court order does not “furnish a basis for

5

its reasoning,” federal habeas courts must conduct an independent review of the record to

6

determine whether the state court’s decision is contrary to, or an unreasonable application

7

of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th

8

Cir. 2000), overruled on other grounds by Andrade, 538 U.S. at 75-76; accord Himes v.

9

Thompson, 336 F.3d 848, 853 (9th Cir. 2003). A state court need not cite Supreme Court

10

precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. “[S]o long as

11

neither the reasoning nor the result of the state-court decision contradicts [Supreme Court

12

precedent,]” id., the state court decision will not be “contrary to” clearly established

13

federal law. Id. Clearly established federal law, for purposes of § 2254(d), means “the

14

governing principle or principles set forth by the Supreme Court at the time the state

15

court renders its decision.” Andrade, 538 U.S. at 72.

16

V.

17

DISCUSSION
Lerma raises two grounds for relief. First, he argues his due process rights were

18

violated when the trial court allowed portions of a pretrial interview with A.R. to be

19

admitted as evidence. (Third Am. Pet. 6-12, ECF No. 8.) Second, Lerma contends that

20

his due process rights were violated when the trial court failed to instruct the jury on a

21

lesser included offense. (Id. at 13-16.) Respondent asserts that Petitioner fails to raise

22

cognizable federal claims, and additionally, the state court’s denial of the claims was

23

neither contrary to, nor an unreasonable application of, clearly established federal law.

24

(See Answer Attach. #1 Mem. P. & A. Supp. 6-13, ECF No. 12.)

25

A.

26

In claim one, Lerma argues that the trial court violated his right to due process by

Admission of Forensic Interview

27

admitting, as prior inconsistent statements, the portion of A.R.’s pretrial forensic

28

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13
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1

interview during which she stated that Lerma tried to put his penis in her vagina. (Third

2

Am. Pet. 6-12, ECF No. 8.)

3

1.

Background

4

At trial, A.R. testified under direct examination that she and Lerma went to

5

Legoland during the summer that she was twelve years old. (Not. Lodgment Attach. #4

6

Rep.’s Tr. vol. 2, at 171-72, ECF No. 13.) When the prosecutor asked her what happened

7

after the outing, A.R. stated that she believed she went home to her grandmother’s house.

8

(Id. at 173.) The prosecutor asked again if anything notable happened on the day of her

9

Legoland trip and she responded, “I don’t remember. I don’t think so.” (Id.)

10

On cross-examination, defense counsel asked A.R. about the Legoland trip. (Id. at

11

232-33.) She testified that it was a special day which she would remember. (Id. at 233-

12

34.) Defense counsel then read aloud a portion of A.R.’s preliminary hearing testimony

13

during which she described how Lerma tried to put his penis in her vagina on the same

14

day they went to Legoland:

15

[A.R.]:
And we went to the new house and he went into the
bedroom and he was playing video games and Jennifer was in the room with
us and he told her to go to the store to go buy something to eat. So she left
and it was just me and him alone, and this time he pulled down my pants and
my underwear and he pulled down his pants and boxers, and he started
playing with my vagina with his fingers and then – he tried to put his penis
inside – inside my vagina.

16
17
18
19
20

But I told him no. I kept closing my legs, and he kept trying to pull
them open, but I kept resisting him and kicking him, and when he told me to
let him do it and I told him no and he stopped and I pulled my pants back up
and I started crying, and then after that he made me play with his penis, and
then after that he pulled down my pants and he start putting his fingers
inside me again. I didn’t let him. And then I told him I wanted to go back
home to my grandma’s house. So he took me home.

21
22
23
24
25
26

(Id. at 240.) Defense counsel read another portion of A.R.’s preliminary hearing

27

testimony:

28

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14
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1

Question [Prosecutor]: I want to go back to the time when you said
he tried to put his penis in your vagina back when you were – the day you
went to Legoland, okay? Do you understand which time I’m talking about?

2
3

Answer [A.R.]:

4
5

Yes.

Question:
Answer:

Yes.

Question:

6

Do you remember talking about your vagina hurting?

Tell us about that.

7
8
9

Answer:
After he tried to do that, I went to the rest room and I
went pee and it burnt and to close my legs it hurt a little bit, and I just felt
real uncomfortable, and so I told him to take me home to my grandma’s
house.

10
11
12

[Question:] Could you tell why it burned?

13
[Answer:]

14
15

Question: At that same time, do you remember telling [Lerma]
when he was putting his penis in your vagina that it hurt?

16
17

Answer:

18

Question:
happening.

19
20

Yes.
Tell us exactly what you said to him while that was

Answer:
I told him to stop. He said why. I said because it hurts
me, and he said that he wouldn’t hurt me, to just let him do that, and I said
no and that’s when I moved away from him.

21
22
23

Huh-uh, no.

(Id. at 241-42.)

24

Defense counsel next asked A.R. if she remembered testifying at the preliminary

25

hearing that appellant tried to put his penis in her vagina on the day she went to

26

Legoland, and she responded that she did. (Id. at 242.) Counsel continued, “But nothing

27

happened the day you went to Legoland?” A.R. responded, “Right.” (Id.)

28

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15
17cv1925 LAB (RBB)

1

On redirect examination, the prosecutor asked A.R. to explain why she testified at

2

the preliminary hearing about what Lerma did to her on the day they went to Legoland

3

but failed to mention those things during her direct examination. (Id.) The following

4

exchange then occurred:

5
6
7

[Prosecutor]: [A.R.], how can you explain that to us? You did tell us
when you testified at the preliminary hearing about all these things
happening on the day you went to Legoland, and now when you testified,
you didn’t tell us about that?

8

[A.R.]:

I forgot.

9
Q:

11
12
13

You forgot what?

A:

10

What happened the day of Legoland.

Q:
Okay. But I -- am I correct now? Okay. What is correct; did
anything happen on the day of Legoland?

14

A:

Well, no, I guess not. Nothing happened.

15
16

Q:
Okay. So there’s nothing to forget. Help me understand what
you mean forgot?

17
18

A:
Well I forgot what happened on the day of Legoland. The story
I said before, I forgot that that incident happened.

19
Q:

21
22
23
24
25
26
27

Okay. Did that incident happen?

A:

20

Yeah, but I -- don’t remember if it was the day of Legoland or

not.
Q:
All right. Well, let me ask you this then. As you sit here today
and you’re just thinking about the truth -A:

Right.

Q:
-- thinking about things that actually happened -- I’m not asking
what you said, just asking what actually happened.

28
16
17cv1925 LAB (RBB)

1
2
3
4

A:

Right.

Q:
Was there ever a time where when [sic] [Lerma] tried to put his
penis in your vagina?
A:

Yes.

Q:

Why didn’t you say that when you testified all of today?

A:

I forgot.

Q:

When did this happen?

A:

I don’t remember.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Q:
Why is it that when you testified at the preliminary hearing you
said it happened on the day you went to Legoland?
A:
I don’t know because I remember it happened on the day of
Legoland, and this time I didn’t remember.
Q:
Okay. So what do you think is the truth, that nothing
inappropriate happened on the day of Legoland or that it did?
A:
That incident did happen but I’m not sure if it did or didn’t
happen on the day of Legoland.
Q:
Do you know -- and it’s okay to say you don’t know -- do you
know how old you were or what grade you were in when he tried to put his
penis in your vagina?

21
22
23
24
25
26
27

A:

I was 12, in seventh grade.

Q:

How do you know that?

A:
Because it was his second town home, and after I was 13 years
old, I only saw him one more time and that was it.
Q:
How many times did an incident happen where he tried to put
his penis in your vagina?

28
17
17cv1925 LAB (RBB)

1
2

A:

Only once.

Q:

Are you sure about that?

3
4
5
6

A:
Yeah.
Q:
So that only happened once, but you’re unsure about the day it
happened?
A:

Right.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

(Id. at 242-44.)
After A.R.’s testimony, the prosecutor sought to introduce A.R.’s videotaped
forensic interview, arguing that it contained both prior inconsistent statements and prior
consistent statements. (See id. at 255, 258.) Defense counsel objected, claiming the
hearsay exceptions did not apply. (Id. at 255-58.) He argued that the prior consistent
statement exception involved situations such as when defense counsel challenges the
witness’s motive for a statement, and that did not happen in A.R.’s case. (Id. at 256-57.)
Further, he asserted that the prior inconsistent statement exception did not apply because
there was nothing in the video that was truly different from A.R.’s testimony. (Id. at
257.) Lerma’s attorney argued that the interview statement was essentially the same as
A.R.’s testimony and it would be improper to allow the prosecutor to bolster his case by
introducing the statement. (Id. at 257-58.) He stated that the admission of the videotaped
forensic interview was tantamount to allowing A.R. to testify all over again. (Id.)
The prosecutor countered that he was permitted to impeach his own witness with
prior inconsistent statements; and A.R.’s initial report, the forensic interview, her
preliminary hearing testimony, and her trial testimony showed she made a number of
inconsistent statements. (Id. at 258-59.) Thus, he argued, the jury should hear her video
statements to assess her credibility. (Id. at 260-62.)
The trial court ultimately ruled the forensic interview was admissible as prior
inconsistent statements. (Not. Lodgment Attach. #5 Rep.’s Tr. vol. 3, at 264-69, ECF

28
18
17cv1925 LAB (RBB)

1

No. 13.) The court found that statements in the forensic interview were inconsistent with

2

A.R.’s testimony on direct examination, during which A.R. failed to mention her

3

previous claims that Lerma had attempted to penetrate her. The judge also found that

4

A.R.’s testimony on redirect that the attempted penetration happened only once was

5

inconsistent with her forensic interview statement, in which she stated it happened “up to

6

three times.” (See id. at 267-69; see also Not. Suppl. Lodgment Attach. #1 [Clerk’s

7

transcript excerpts], at 10, ECF No. 15.) Moreover, the trial court found that A.R.’s

8

forensic interview statement suggesting that Marco was responsible for the first touching

9

incident was inconsistent with her trial testimony that it was Lerma. (Not. Lodgment

10

Attach. #5 Rep.’s Tr. vol. 3, at 266-69, ECF No. 13.) The trial court noted that A.R. was

11

subject to being recalled as a witness. (Id. at 272.)

12

The taped forensic interview was played for the jury. (Id. at 274.) During the

13

interview, A.R. described Lerma’s attempts to penetrate her with his penis. She stated

14

that Lerma had pushed her on the bed and “opened” her legs. She told Lerma “no, it

15

hurts” but Lerma said “let me just do it slowly and I won’t hurt you,” but she would not

16

let him. (Not. Suppl. Lodgment Attach. #1 [Clerk’s transcript excerpts], at 9-10, ECF

17

No. 15.) She stated that Lerma tried to put his penis inside her “two to three times.”

18

(See id.)

19
20

2.

California Court of Appeal Decision

Lerma raised this claim in his petition for review to the California Supreme Court.

21

(See Not. Lodgment Attach. #13 Petition for Review, People v. Lerma, No. S241125 at

22

25-26, ECF No. 13.) The court denied the petition without comment or citation. (Not.

23

Lodgment Attach. #14 People v. Lerma, No. S241125, Order at 1, ECF No. 13.)

24

Accordingly, this Court looks through to the last reasoned state court opinion, that of the

25

California Court of Appeal. See Ylst, 501 U.S. at 805-06.

26

On appeal, Lerma argued that the admission of the forensic interview recording

27

was a violation of California rules of evidence and the Due Process Clause of the U.S.

28

Constitution. (See Not. Lodgment Attach. #8 Appellant’s Opening Brief at 2, People v.
19
17cv1925 LAB (RBB)

1

Lerma, D068126, ECF No. 13.) The appellate court found no error. In its decision, the

2

court concluded that the evidence was properly admitted as a prior inconsistent statement.

3

(See Not. Lodgment Attach. #12 People v. Lerma, D068126, Order Modifying Opinion

4

and Denying Rehearing at 3, ECF No. 13.) Specifically, the court noted that during her

5

forensic interview, A.R. stated that Lerma had attempted to penetrate her on two or three

6

occasions, including the day of the Legoland visit. At trial, A.R. testified initially that

7

nothing notable happened the day they went to Legoland. After being impeached with

8

her preliminary hearing testimony, A.R. recalled that Lerma had attempted to penetrate

9

her on one occasion, but she could not remember when it happened. This, the appellate

10

court concluded, was inconsistent with A.R.’s forensic interview statement under the

11

requirements of California Evidence Code section 1235;6 the trial court did not err in

12

allowing the evidence to be admitted. (See id.)

13

Further, the appellate court found that even assuming there was error, there was no

14

prejudice. The court applied the harmless error standard applicable to trial error –

15

whether it is more probable than not that the appellant could have achieved a more

16

favorable outcome in the absence of the error. (See id. at 3-4 (citing People v. Watson,

17

18

6

19
20
21
22
23
24
25
26
27
28

California Evidence Code section 1235 states:
Evidence of a statement made by a witness is not made inadmissible by the
hearsay rule if the statement is inconsistent with his testimony at the hearing and is
offered in compliance with Section 770.

Cal. Evid. Code § 1235 (West Supp. 2017) Section 770 of the California Evidence Code, in turn, states:
Unless the interests of justice otherwise require, extrinsic evidence of a statement
made by a witness that is inconsistent with any part of his testimony at the hearing shall
be excluded unless:
(a) The witness was so examined while testifying as to give him an
opportunity to explain or to deny the statement; or
(b) The witness has not been excused from giving further testimony in the
action.
Cal. Evid. Code § 770 (West Supp. 2017).
20
17cv1925 LAB (RBB)

1
2
3
4
5
6
7
8
9
10

46 Cal. 2d 818, 836, 299 P. 2d 243, 254 (1956)).) The court stated:
To the extent that the forensic interview was consistent with [A.R.’s] trial
testimony and inadmissible, it was cumulative of her trial testimony and . . .
not prejudicial. In addition, of course, here, the forensic statement was not
only cumulative of [A.R.’s] trial testimony, the substance of her statement
had also been presented to the jury by Lerma by way of impeachment with
A.R.’s preliminary hearing testimony. Moreover, the incident was not
greatly different in character from the oral copulation and other lewd acts
[A.R.] described at trial and, thus, not likely to further alienate jurors.
Importantly, there was also substantial corroboration of [A.R.’s] other
testimony in the admissions Lerma made to the polygraph examiner. In sum
then, had the videotape been excluded, it is not probable Lerma would have
achieved a better result at trial.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(Id. at 4-5.)
The appellate court did not directly address the federal due process aspect of
Lerma’s claim. When a state court addresses some of the claims raised by a defendant
but not the federal claim, the habeas court should still presume the federal claim was
adjudicated on the merits and apply AEDPA deference unless the presumption is
rebutted. Johnson v. Williams, 568 U.S. 289, 293 (2013). Moreover, if, as here, a
petitioner brings a state and federal law claim for the same issue, and the state law
“is at least as protective as the federal standard -- then the federal claim may be regarded
as having been adjudicated on the merits.” Id. at 301.
3.

Discussion

A federal court is limited in conducting habeas review to deciding whether a
conviction violates the Constitution, laws, or treaties of the United States. 28 U.S.C.A.
§ 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The Supreme Court has
repeatedly held that the federal habeas writ is unavailable for violations of state law or for
alleged error in the interpretation or application of state law. See Swarthout v. Cooke,
562 U.S. 216, 220 (2011). A state court’s evidentiary ruling is not cognizable on federal
habeas review unless the ruling infringes upon a specific federal constitutional or
21
17cv1925 LAB (RBB)

1

statutory provision or deprives the defendant of a fundamentally fair trial as guaranteed

2

by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Walters v. Maass, 45 F.3d

3

1355, 1357 (9th Cir. 1995). Failure to comply with state rules of evidence is neither a

4

necessary nor a sufficient basis for granting federal habeas relief on due process grounds.

5

See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); Jammal v. Van de Kamp, 926

6

F.2d 918, 919 (9th Cir. 1991). To the extent Lerma argues that the state court

7

misapplied the California Evidence Code’s hearsay rule, it is a claim of state law error for

8

which federal habeas relief is not available.

9

Moreover, the Supreme Court has never held that the admission of hearsay

10

testimony or prior inconsistent statements violates the Due Process Clause. In California

11

v. Green, 399 U.S. 149, 164 n.15 (1970), the Court stated that while “considerations of

12

due process . . . might prevent convictions where a reliable evidentiary basis is totally

13

lacking,” the Constitution is not violated “by the admission of a witness’ prior

14

inconsistent statement for the truth of the matter asserted.” Id. Thus, absent “clearly

15

established” Supreme Court law on the issue of prior inconsistent statements, the

16

California Court of Appeal’s denial of the claim cannot have been an unreasonable

17

application of clearly established federal law. See Carey v. Musladin, 549 U.S. 70, 77

18

(2006) (holding that “[g]iven the lack of holdings from this Court . . . , it cannot be said

19

that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law”’).

20

Even setting aside the “clearly established law” issue, Lerma’s claim is without

21

merit. Absent violation of a specific constitutional or statutory provision, the due process

22

inquiry in federal habeas review is whether the admission of evidence was arbitrary or so

23

prejudicial that it rendered the trial fundamentally unfair. Holley v. Yarborough, 568

24

F.3d 1091, 1101 (9th Cir. 2009); see also Walters, 45 F.3d at 1357. A federal writ of

25

habeas corpus will be granted for an erroneous admission of evidence “only where the

26

‘testimony is almost entirely unreliable and . . . the factfinder and the adversary system

27

will not be competent to uncover, recognize, and take due account of its shortcomings.’”

28

Mancuso v. Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463
22
17cv1925 LAB (RBB)

1

U.S. 880, 899 (1983)), overruled on other grounds by Slack v. McDaniel, 529 U.S. 473

2

(2000).

3

“Only if there are no permissible inferences the jury may draw from the evidence

4

can its admission violate due process.” Jammal, 926 F.2d at 920. Evidence must “‘be of

5

such quality as necessarily prevents a fair trial’” for its admission to violate due process.

6

Id. (quoting Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986)). Even

7

then, habeas relief is not appropriate unless the error had substantial and injurious effect

8

or influence in determining the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619,

9

623 (1993); Dillard v. Roe, 244 F.3d 758, 767 n.7 (9th Cir. 2001).

10

Here, the admission of A.R.’s forensic interview did not render the trial

11

fundamentally unfair because, despite some inconsistencies, nothing about the interview

12

was inherently unreliable. As the state court noted, the forensic interview was conducted

13

on June 7, 2012, a year and a half before the trial, when A.R.’s memory of the specifics

14

would likely have been sharper. (See Not. Lodgment Attach. #2 Clerk’s Tr. vol. 2, at

15

272, ECF No. 13; Not. Lodgment Attach. #4 Rep.’s Tr. vol. 2, at 49, 112, ECF No. 13.)

16

A.R.’s trial testimony about the day of her Legoland visit was confused and somewhat

17

contradictory. As noted above, she first testified that nothing inappropriate happened the

18

day of the Legoland trip. (Not. Lodgment Attach. #4 Rep.’s Tr. vol. 2, at 173, ECF No.

19

13.) When defense counsel confronted A.R. with her preliminary hearing testimony that

20

Lerma had molested her and attempted to penetrate her on the day of the Legoland trip,

21

A.R. wavered between explanations. (See id. at 236-41.) She testified both that she had

22

forgotten that it happened and that it did not happen at all. (See id. at 242-44.) She

23

eventually testified that she was sure Lerma had attempted to penetrate her on only one

24

occasion but she could not remember when. (Id. at 244.)

25

Admission of the forensic interview was relevant to evaluating the reliability of

26

A.R.’s trial testimony and the substance of her allegations. During the interview, she

27

stated that Lerma had attempted to penetrate her on two or three occasions, which was

28

also inconsistent with her trial testimony. (Not. Suppl. Lodgment Attach. #1 [Clerk’s
23
17cv1925 LAB (RBB)

1

transcript excerpts], at 10, ECF No. 15.) In addition, A.R. stated during her forensic

2

interview that Marco, her mother’s former boyfriend, was responsible for the first

3

incident of alleged molestation. (Not. Lodgment Attach. #2 Clerk’s Tr. vol. 2, at 285-86,

4

ECF No. 13; see also Not. Suppl. Lodgment [Clerk’s transcript excerpts], at 3, ECF No.

5

15.) This was in contrast to her trial testimony that by the time she was ten or eleven

6

years old, she had deduced that it was Lerma, not Marco, who had touched her

7

inappropriately while she was sleeping. (Not. Lodgment Attach. #4 Rep.’s Tr. vol. 2, at

8

194-95, ECF No. 13.)

9

The admission of the forensic interview did not render the trial fundamentally

10

unfair. Indeed, it was defense counsel who first to pointed to prior inconsistent

11

statements from A.R.’s preliminary hearing testimony. (Id. at 233-39.) At the

12

preliminary hearing, she had stated that Lerma attempted to penetrate her with his penis

13

on the day of the Legoland trip. (See id. at 239-40.) Additionally, in his closing

14

argument, defense counsel argued that A.R.’s implication of Marco in the first instance of

15

inappropriate touching undermined her credibility. (See Not. Lodgment Attach. #6

16

Rep.’s Tr. vol. 4, at 528-29, ECF No. 13.) Thus, the forensic interview statement was

17

relevant to arguments of both the prosecution and defense.

18

While the forensic interview contained some statements inconsistent with A.R.’s

19

trial testimony, a reliable evidentiary basis for the statements was not totally lacking so as

20

to render the trial fundamentally unfair. There is a reliable evidentiary basis for

21

statements made by a victim to a police officer or social worker shortly after reporting a

22

crime. See Green, 399 U.S. at 163 n.15 (1970) (stating that the admission of witness’s

23

prior inconsistent statement is only a due process violation where “a reliable evidentiary

24

basis is totally lacking”). The jury was capable of evaluating A.R.’s statements and

25

testimony to determine her credibility and reliability.7 See Mancuso, 292 F.3d at 956

26
27
28

7

The jury instructions included the following: (1) how to assess the credibility of witnesses, CALCRIM
No. 226; (2) how to weigh conflicting evidence, CALCRIM No. 302; and (3) how to view prior
24
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1

(stating that habeas relief is only warranted when the evidence is “almost entirely

2

unreliable” and the jury would not be “competent to uncover, recognize, and take due

3

account of its shortcomings”). Therefore, admission of the forensic interview as a prior

4

inconsistent statement did not violate Lerma’s due process rights, and the state court’s

5

denial of the claim was not unreasonable.

6

Lastly, Lerma appears to also argue that the admission of the forensic interview

7

was a violation of his due process rights because it constituted a knowing admission of

8

false or perjurious testimony. (Third Am. Pet. 8-9, ECF No. 8.) He contends that his

9

right to a fair trial was violated and he was “deprived of liberty through a deliberate

10

deception of the court and jury by the presentation of testimony known to be false.” (Id.

11

at 9.) This aspect of the claim was not presented to the California Supreme Court and is

12

therefore unexhausted. 28 U.S.C.A. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129,

13

133-34 (1987); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (stating that

14

for a petitioner in California state custody, exhaustion generally means that the petitioner

15

must have fairly presented his or her claims in a petition to the California Supreme

16

Court).

17

Even if the claim were properly before this Court, Lerma would not be entitled to relief.

18

The government’s knowing use of false or perjured testimony against a defendant

19

to obtain a conviction violates due process. Napue v. Illinois, 360 U.S. 264, 269 (1959);

20

Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (citing United States v. Agurs, 427

21

U.S. 97, 103 (1976)). The result is the same when a prosecutor, “although not soliciting

22

false evidence, allows it to go uncorrected when it appears.” See Napue, 360 U.S. at 269.

23

But the presentation of conflicting versions of events, without more, does not constitute a

24

knowing presentation of false evidence. United States v. Geston, 299 F.3d 1130, 1135

25

(9th Cir. 2002). To prevail on a Napue claim, (1) the testimony or evidence must be

26

27
28

statements, CALCRIM No. 318. (Not. Lodgment Attach. #1 Clerk’s Tr. vol. 1, at 69-70, 73, 75, ECF
No. 13.)

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false, (2) the prosecution must have known or should have known it was false, and (3) the

2

false testimony must be material. See Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005)

3

(en banc) (citing United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)).

4

Falsity is not established merely by showing that the witness made an earlier

5

inconsistent statement or that the witness’s testimony differs from that of another witness.

6

See Zuno-Arce, 44 F.3d at 1423; see also Geston, 299 F.3d at 1135; Tayborn v. Scott,

7

251 F.3d 1125, 1131 (7th Cir. 2001) (stating mere inconsistencies in the testimony of a

8

government witness fall short of establishing that the government knowingly used false

9

testimony). “Discrepancies in testimony . . . could as easily flow from errors in

10
11

recollection as from lies.” Zuno-Arce, 44 F.3d at 1423.
Here, Lerma’s allegations do not demonstrate a Napue violation because he has not

12

shown that the evidence in question was false or that the prosecutor knew or reasonably

13

should have known it was false. See Mancuso, 292 F.3d at 957 (rejecting Napue claim

14

where there was no evidence prosecutor presented false testimony); Murtishaw v.

15

Woodford, 255 F.3d 926, 959 (9th Cir. 2001) (rejecting claim that prosecution suppressed

16

evidence that witness’s testimony was false because petitioner presented no evidence that

17

prosecution knew it was false). The prosecutor questioned A.R. at length about the

18

discrepancies between her statements. (Not. Lodgment Attach. #4 Clerk’s Tr. vol. 2, at

19

242-44, ECF No. 13.) Defense counsel also questioned A.R. about her recollection and

20

her prior statements, specifically about the conflict between her preliminary hearing

21

testimony and trial testimony. (See id. at 234-39.)

22

While there were some inconsistencies in A.R.’s testimony and statements, there is

23

no evidence in the record that her testimony was false or that the prosecutor knew as

24

much. See Zuno-Arce, 44 F.3d at 1423. And the inconsistencies were explored by both

25

sides. Where there is no evidence that the prosecution knew, or should have known, that

26

a witness’s testimony was false, “[a]t most, two conflicting versions . . . [have been]

27

presented to the jury. It [is] within the province of the jury to resolve the disputed

28

testimony.” See Geston, 299 F.3d at 1135. Thus, even assuming that Lerma’s Napue
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claim was properly exhausted, he is not entitled to relief. See Cassett v. Stewart, 406

2

F.3d 614, 624 (9th Cir. 2005) (holding that a federal court may deny relief on the merits

3

of an unexhausted claim when it is clear the petitioner has “no chance of obtaining

4

relief”).

5

In sum, the state court’s denial of Lerma’s claim that his due process rights were

6

violated by the admission of A.R.’s forensic interview as a prior inconsistent statement

7

was neither contrary to, nor an unreasonable application of, clearly established law. See

8

28 U.S.C.A. § 2254(d); Williams, 529 U.S. at 407-08. And to the extent Lerma also

9

argues his due process right was violated by the presentation of testimony, he is not

10

entitled to relief. See Cassett, 406 F.3d at 624. Accordingly, the Court

11

RECOMMENDS that the claim be DENIED.

12

B.

13

In ground two, Petitioner argues that the trial court should have sua sponte

Failure to Instruct on Lesser Included Offense

14

instructed the jury that it could convict him of “attempted sexual penetration,” under

15

California Penal Code section 289(a)(1)(B), as a lesser included offense to count one,

16

oral copulation or sexual penetration of a child ten years of age or younger, in violation

17

of California Penal Code section 288.7. (Third. Am. Pet. 13-16, ECF No. 8.)

18

Lerma raised this claim in his petition for review to the California Supreme Court.

19

(See Not. Lodgment Attach. #13 Petition for Review, People v. Lerma, No. S241125,

20

ECF No. 13.) The court denied the petition without comment or citation. (Not.

21

Lodgment Attach. #14 People v. Lerma, No. S241125, Order at 1, ECF No. 13.) As

22

such, this Court looks through to the last reasoned state court opinion, that of the

23

California Court of Appeal. See Ylst, 501 U.S. at 805-06.

24

In denying the claim, the appellate court noted that under California law, “when a

25

crime may be committed in multiple ways, and it has been charged by the prosecution in

26

multiple ways, [a lesser included offense instruction] is required if one of the ways in

27

which the crime was charged includes all the elements of a lesser offense.” (Not.

28

Lodgment Attach. #12, People v. Lerma, D068126, Order Modifying Opinion and
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Denying Rehearing, at 6-8, ECF No. 13 (citing People v. Smith, 57 Cal. 4th 232, 243-44,

2

159 Cal. Rptr. 3d 57, 66, 303 P.3d 368, 375-76 (2013).) The appellate court further

3

stated:

4
5
6
7
8
9
10
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12
13
14
15
16
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18
19
20
21
22
23
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25
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27
28

[U]nder Smith, in determining whether it must give an LIO instruction, a
trial court must consider two distinct questions: a) did the accusatory
pleading make the lesser crime an LIO; and b) is there evidence in the record
from which a jury might find the defendant committed the lesser crime, but
not the greater crime. Under Smith, only if the court answers both questions
in the affirmative is it required to give an LIO instruction. (See Smith, supra,
57 Cal.4th at p. 245.)
Here, section 288.7, subdivision (b) states: “Any person 18 years of
age or older who engages in oral copulation or sexual penetration, as defined
in Section 289, with a child who is 10 years of age or younger is guilty of a
felony and shall be punished by imprisonment in the state prison for a term
of 15 years to life.” Section 288a, subdivision (a) defines oral copulation as
“the act of copulating the mouth of one person with the sexual organ or anus
of another person.” Section 289, subdivision (k)(1) defines sexual
penetration as “the act of causing the penetration, however slight, of the
genital or anal opening of any person or causing another person to so
penetrate the defendant's or another person’s genital or anal opening for the
purpose of sexual arousal, gratification, or abuse by any foreign object,
substance, instrument, or device, or by any unknown object.” Like section
69 considered in Smith, by its terms violation of section 288.7 subdivision
(b) may occur in two ways: by oral copulation with child under the age of 10
or by sexual penetration with a child under the age of 10.
Because violation of section 288.7 subdivision (b) can occur by way
of either oral copulation with a child under 10 or sexual penetration with a
child under 10, Lerma argues that, under Smith, the allegation he violated
section 288.7 required an LIO instruction that would have permitted the jury
to find him guilty of attempted sexual penetration in violation of sections
288.7 and 664. This argument fails on two related grounds. First, the
accusatory pleading alleged only one means of violating section 288.7, to
wit: oral copulation. Here, the district attorney’s charging document alleged:
“COUNT 1 - ORAL COPULATION/SEXUAL PENETRATION WITH A
CHILD 10 YEARS OLD OR YOUNGER [¶] On or about and between
September 21, 2006 and August 13, 2009, DAVID DANIEL LERMA, being
a person eighteen years of age and older, did unlawfully engage in oral
copulation and sexual penetration, as defined in Section 289 of the Penal
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1
2
3
4
5
6
7
8
9
10
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12
13
14
15
16
17

Code with a child, who was 10 years of age or younger, in violation of
PENAL CODE SECTION 288.7(b). [¶] To wit: Defendant’s tongue to
Victim’s vagina; while she was in elementary school and living with
Defendant.” In contrast to the charging document considered in Smith,
which clearly and unambiguously alleged both ways of violating section 69,
here the document expressly limits the allegation to one way of violating
section 288.7, subdivision (b): oral copulation. Only by either ignoring the
last sentence of the allegation, or interpreting it somehow as not limiting the
scope of the allegation, can one conclude that both ways of violating section
288.7, subdivision (b) were alleged. We are not willing to engage in either
such strained interpretation of count 1.
However, even if the information did not limit count 1 to oral
copulation, no LIO instruction would be required here. There is not only an
absence of evidence Lerma attempted to penetrate A.’s vagina within the
meaning of section 289 subdivision (k)(1), but A.’s testimony suggests that
in fact Lerma did not attempt to penetrate her vagina. In both instances A.
described at trial, she was under 10 and naked; in both instances he threw
her on the bed, put a pillow over her head, touched her vagina but did not
penetrate her, and then licked her vaginal area. There is no evidence in
either of these factual settings that if Lerma had any desire to penetrate A.’s
vagina, A. would have been able to prevent him from doing so. Because, in
both instances, instead of penetrating A.’s vagina Lerma chose to lick her
vaginal area, a jury could not reasonably conclude that Lerma wanted to
penetrate A.’s vagina but was somehow unable to do so.

18
19

(Not. Lodgment Attach. #11 People v. Lerma, D068126, slip op., ECF No. 13 as

20

modified by Not. Lodgment Attach. #12, People v. Lerma, D068126, Order

21

Modifying Opinion and Denying Rehearing, ECF No. 13.)

22

The Ninth Circuit has stated that “the failure . . . to instruct on lesser included

23

offenses in a [noncapital] case does not present a federal constitutional question.”

24

Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998); see also Solis v. Garcia, 219

25

F.3d 922, 929 (9th Cir. 2000) (per curiam) (holding in a noncapital case that failure of

26

state court to instruct on lesser included offense does not alone present a federal

27

constitutional question cognizable in a federal habeas corpus proceeding). Because there

28

is no Supreme Court authority holding that the Constitution entitles a defendant in a
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1

noncapital case to jury instructions on lesser included offenses, the state court’s denial of

2

the claim could not have been unreasonable. Beck v. Alabama, 447 U.S. 625, 638 n.14

3

(1980); see Howell v. Mississippi, 543 U.S. 440, 445 (2005); see also Knowles v.

4

Mirzayance, 556 U.S. 111, 122 (2009) (“[T]his Court has held on numerous occasions

5

that it is not an unreasonable application of clearly established Federal law for a state

6

court to decline to apply a specific legal rule that has not been squarely established by

7

this Court.”) (internal quotation omitted); United States v. Rivera-Alonzo, 584 F.3d 829,

8

834 n.3 (9th Cir. 2009) (“In the context of a habeas corpus review of a state court

9

conviction, we have stated that there is no clearly established federal constitutional right

10
11

to lesser included instructions in [noncapital] cases.”).
Furthermore, although “the defendant’s right to adequate jury instructions on his or

12

her theory of the case might, in some cases, constitute an exception to the [foregoing]

13

general rule,” Solis, 219 F.3d at 929, Lerma’s is not such a case. Due process does not

14

require that an instruction be given unless the evidence supports it. See Menendez v.

15

Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005). A defendant is not entitled to have jury

16

instructions given as phrased by the defendant when the given instructions adequately

17

embody the defense theory. United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir.

18

1996). To obtain relief for the state court’s refusal to give an instruction, the error must

19

have so infected the trial that the defendant was deprived of the fair trial guaranteed by

20

the Fourteenth Amendment. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir.

21

1988).

22

Here, as the state appellate court found, there was no evidence to support an

23

instruction on “attempted sexual penetration” in violation of California Penal Code

24

sections 288.7 and 664. Under section 288.7(b), “Any person 18 years of age or older

25

who engages in oral copulation or sexual penetration . . . with a child who is 10 years of

26

age or younger is guilty of a felony and shall be punished by imprisonment in the state

27

prison for a term of 15 years to life.” Cal. Penal Code § 288.7(b) (West 2010). There are

28

thus two ways to violate section 288.7(b): by sexual penetration or by oral copulation.
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17cv1925 LAB (RBB)

1

Lerma was charged with violating section 288.7(b) by engaging in oral copulation with

2

A.R; the violation alleged in this case was “To wit: Defendant’s tongue to Victim’s

3

vagina; while she was in elementary school and living with Defendant.” (Not. Lodgment

4

Attach. #1 Clerk’s Tr. vol. 1, at 7, ECF No. 13.) Further, the jury was instructed that the

5

allegation as to count one was based on oral copulation. Under CALCRIM No. 1128, the

6

jury was instructed as follows:

7

The defendant is charged in Count 1 with engaging in oral copulation with a
child 10 years of age or younger in violation of Penal code section 288.7(b).

8
9

To prove that the defendant is guilty of this crime, the People must
prove that:

10
11

1.

12

2.
younger;

13
14

3.

The defendant engaged in an act of oral copulation with [A.R.];
When the defendant did so, [A.R.] was 10 years of age or
At the time of the act, the defendant was at least 18 years old.

15
Under the law, a person becomes one year older as soon as the first minute
of his or her birthday has begun.

16
17

Oral copulation is any contact, no matter how slight, between the mouth of
one person and the sexual organ or anus of another person. Penetration is
not required.

18
19
20
21

(Id. at 85.) Given the specific oral acts alleged in count one, there was no reason to

22

instruct the jury on “attempted sexual penetration” when there was no instruction

23

on “sexual penetration.”

24

Likewise, there was no evidence presented at trial that Lerma had sexually

25

penetrated or attempted to sexually penetrate A.R. when she was ten years old or

26

younger. “Sexual penetration” under California Penal Code section 288.7(b) is defined

27

as follows:

28

///
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17cv1925 LAB (RBB)

1
2
3
4

“Sexual penetration” is the act of causing the penetration, however
slight, of the genital or anal opening of any person or causing another person
to so penetrate the defendant’s or another person’s genital or anal opening
for the purpose of sexual arousal, gratification, or abuse by any foreign
object, substance, instrument, or device, or by any unknown object.

5

Cal. Penal Code § 289(k)(1) (West 2010). As the jury was instructed, penetration is not

6

required under the definition of oral copulation. Mere contact is enough. People v.

7

Dement, 53 Cal. 4th 1, 41-44, 133 Cal. Rptr. 3d 496, 533-36, 264 P.3d 292, 323-25

8

(2011), overruled on another ground in People v. Rangel, 62 Cal. 4th 1192, 1216, 200

9

Cal. Rptr. 3d 265, 288, 367 P.3d 649, 669 (2016); see also People v. Huynh, 212 Cal.

10
11

App. 4th 285, 305; 151 Cal. Rptr. 3d 170, 187 (Cal. Ct. App. 2012).
At trial, A.R. specifically testified that Lerma had not penetrated or attempted to

12

penetrate her when she was ten years old or younger. A.R. testified that one incident

13

happened when she was about eight years old and she was living in the one bedroom

14

mobile home. (Not. Lodgment Attach #4 Rep.’s Tr. vol. 2, at 123-24, 128, ECF No. 13.)

15

A.R. stated that once, when she was eight or nine, she was sleeping and woke up to

16

discover that Lerma had his hand on her vagina, over her clothes. (Id. at 130-32.) She

17

did not testify that Lerma penetrated or attempted to penetrate her on that occasion. (Id.)

18

With regard to another incident, which A.R. testified happened when she was

19

“seven or eight,” (id. at 128), A.R. stated: “I went to the bedroom, and then he came to

20

the bedroom and he put me on their bed, and he put the pillow over my face, and then he

21

started touching me.” (Id. at 126.) She testified that Lerma touched her vagina with his

22

fingers and then licked her vagina. (Id. at 127.) She did not give any testimony about

23

Lerma attempting to penetrate her on that occasion. (See id. at 126-29.)

24

Finally, she testified that when she was ten years old and in the fifth grade, she was

25

about to take a shower when Lerma came into her room and put her on the bed. (Id. at

26

135-36.) He put a pillow over her face and then touched her vagina and licked it. (Id. at

27

138-39.) The prosecutor asked A.R. if Lerma put his fingers inside her vagina, and she

28

stated that he had not. (Id. at 139.)
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1

To the extent there was any evidence of sexual penetration or attempted sexual

2

penetration, it was with regard to A.R.’s allegations (primarily made during her forensic

3

interview and preliminary hearing testimony) that Lerma had attempted to penetrate her

4

vagina with his penis on one or more occasion (Not. Suppl. Lodgment Attach. #1

5

[Clerk’s transcript excerpts], at 10, ECF No. 15.) This occurred after Lerma and A.R.’s

6

mother had divorced and Lerma had moved out of the trailer they had shared. (Id. at 8.)

7

Defense counsel cross examined A.R. and referred to her preliminary hearing testimony;

8

A.R. stated that this happened on the day they visited Legoland, when she was twelve

9

years old. (Not. Lodgment Attach. #4 Rep.’s Tr. vol. 2, at 239-42, ECF No. 13.) In the

10

forensic interview, A.R. described the attempted penetration as happening at the Vista

11

townhouse Lerma shared with Jennifer when A.R. was twelve years old. (Not. Lodgment

12

Attach. #2 Clerk’s Tr. vol. 2, at 292-93, ECF No. 13; Not. Suppl. Lodgment Attach. #1

13

[Clerk’s transcript excerpts], at 8-9, ECF No. 15.)

14

There was no evidence presented at trial that Lerma had penetrated or attempted to

15

penetrate A.R. when she was ten years old or younger. For that reason, the trial court’s

16

failure to instruct on “attempted penetration” under California Penal Code sections 288.7

17

and 664 did not render Lerma’s trial fundamentally unfair. See Dunckhurst, 859 F.2d at

18

114. The state court’s denial of the claim was therefore neither contrary to, nor an

19

unreasonable application of, clearly established law. See 28 U.S.C.A. § 2254(d);

20

Williams, 529 U.S. at 407-08. The Court RECOMMENDS the claim be DENIED.

21

C.

22

Lerma asks this Court to conduct an evidentiary hearing on his claims. (See Third

Request for Evidentiary Hearing

23

Am. Pet. 11, ECF No. 8.) Petitioner does not, however, identify what evidence, if any, he

24

intends to present. Lerma’s request is foreclosed by the Supreme Court’s decision in

25

Cullen v. Pinholster, 563 U.S. 170 (2011). There, the Supreme Court held that where

26

habeas claims have been decided on their merits in state court, a federal court’s review

27

under 28 U.S.C.§ 2254(d)(1) -- whether the state court determination was contrary to or

28

an unreasonable application of established federal law -- must be confined to the record
33
17cv1925 LAB (RBB)

1

that was before the state court. Pinholster, 563 U.S. at 181-82. The Court specifically

2

found that the district court should not have held an evidentiary hearing regarding

3

Pinholster’s claims of ineffective assistance of counsel until after the lower court

4

determined that the petition survived review under § 2254(d)(1). Id.

5

For the reasons discussed in Sections V(A)-(B) of this Report and

6

Recommendation, none of Petitioner’s claims survive review under § 2254(d). The Ninth

7

Circuit has stated that “an evidentiary hearing is pointless once the district court

8

has determined that § 2254(d) precludes habeas relief.” Sully v. Ayers, 725 F.3d 1057,

9

1075-76 (9th Cir. 2013). Accordingly, Lerma’s request for an evidentiary hearing is

10

DENIED.

11

VI.

12

CONCLUSION AND RECOMMENDATION
The Court submits this Report and Recommendation to United States District

13

Judge Larry Alan Burns under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the

14

United States District Court for the Southern District of California.

15

IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving

16

and adopting this Report and Recommendation, and (2) directing that Judgment be

17

entered DENYING the Petition.

18

IT IS HEREBY ORDERED that any party to this action may file written

19

objections with the Court and serve a copy on all parties no later than April 30, 2019.

20

The document should be captioned “Objections to Report and Recommendation.”

21

IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with

22

the Court and served on all parties no later than May 17, 2019. The parties are advised

23

that failure to file objections within the specified time may waive the right to

24

///

25

///

26

///

27

///

28

///
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1

raise those objections on appeal of the Court’s Order. See Turner v. Duncan, 158 F.3d

2

449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

3
4
5

DATED: March 28, 2019

____________________________________
Ruben B. Brooks
United States Magistrate Judge

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